The dominant sentiment among members of the international community towards President Mohamed Morsi’s forcible ouster has been one of ambivalence and acceptance. The European Union (EU) issued a statement supporting the Egyptian public’s demand that Morsi steps down. United Nations (UN) Secretary General Ban Ki-moon expressed concern over the army’s interference, but stopped short of calling it an unlawful forcible overthrow of government. United States (US) President Barack Obama expressed his deep concern and urged the swift return of Egypt to democracy. Although none of them condoned the forcible ouster, they did not condemn it either, perhaps due to Morsi’s association with the Muslim Brotherhood.

The African Union (AU) has broken ranks with the rest of the international community and is the only international body to have adopted a punitive measure against Egypt for deposing Morsi. In an emergency meeting held on 5 July 2013, the AU’s Peace and Security Council (PSC) determined that ‘the overthrow of the democratically elected President does not conform to the relevant provisions of the Egyptian Constitution and, therefore, falls under the definition of an unconstitutional change of Government’ and decided ‘to suspend the participation of Egypt in the AU’s activities until the restoration of constitutional order’.

While the AU’s decision is legal and in accord with its established practice regarding unconstitutional changes of government, the unique set of circumstances in Egypt’s case invites a number of questions. The first relates to the application of this principle in cases of a government being overthrown through a popular uprising. Indeed, in objecting to the PSC’s decision to suspend Egypt, Egypt’s Ambassador in Addis Ababa H.E. Mohamed Edrees said: ‘The African Union is not used to addressing change by the mandate of the will of the people. This is a new challenge from a political and legal aspect to the African Union’s existing rules and instruments.’

According to the AU, the main reason for treating this as an unconstitutional change of government is the electoral credentials of the Morsi’s government. AU Commissioner for Peace and Security Ambassador Ramtane Lamamra thus said, the ‘principal guide for the PSC was the fact that there is now an elected president who continues to claim that he is the legitimate leader and has supporters that agree with him’.

While this is an important consideration, it is not the most decisive one. Given that Morsi’s overthrow came about due to popular street protests accompanied by intervention of the army similar to the ones that toppled President Hosni Mubarak, the most decisive consideration should have been whether the Egyptian public could have achieved a change of government other than through street protests. This is the most important factor distinguishing the removal of Mubarak, which the AU treated as the outcome of a legitimatepopular uprising, from that of Morsi.

Apart from its electoral credentials, another major factor that distinguishes Morsi’s government from that of Mubarak is that (unlike Mubarak’s regime) it has not closed all options for its replacement. Ousting the government through street protests was thus not the last option. As Abdullah Al-Arian rightly pointed out, people who opposed Morsi ‘could have mobilised their energies toward upcoming parliamentary elections, won the majority, and proceeded to amend the constitution and empower a prime minister to take on a greater share of policymaking than Morsi’. The possibility of voting Morsi’s government out of power was a real if long-term one happening only at end of the current term.

There are a number of reasons for insisting that overthrowing a government through popular uprisings should be an exceptional act of last resort in order for it to be legitimate. The most important is stability and order. As John Locke noted in his Two Treatises of Government, and as has been affirmed in the Universal Declaration of Human Rights, ‘revolutions happen not upon every little mismanagement in public affairs’. Any such interpretation ‘will unhinge and overturn all Polities, and instead of government and order leave nothing but anarchy and confusion’. Indeed, as the deepening crisis in Egypt increasingly underscores, the PSC was right in expressing its ‘deepening concern at the risks the prevailing situation poses for the long-term stability of Egypt and cohesion of its people, with far-reaching national and regional consequences’.

Another consideration for judging whether the overthrow meets the AU’s standard of unconstitutional change of government is the role played by the military, although this was not identified as a factor in the AU’s decision. While millions of Egyptians demanded Morsi’s expulsion, the military’s intervention was decisive. As Marwan Bishara observed, the military’s intervention prevented ‘any last-minute efforts that would save face and pave the way for constructive change, such as holding a referendum over the presidency or the building of a national unity government, leading to early elections’.

Notwithstanding the propriety of the AU’s position, a number of issues must be resolved with respect to the applicability of the norm on unconstitutional changes of government, particularly when a popular uprising is involved in ousting a government. First, if a government is toppled through a popular uprising (as illustrated by the removal of Mubarak) and the AU treats this act as legitimate, it is imperative to clarify the standard for determining the popularity of an uprising as a manifestation of the ‘will of the people’ and hence as a legitimate act. Second, in the current context of Egypt, there is the question of the standard that is applied for determining the moment of restoration of constitutional order, which will mark the end of Egypt’s suspension from AU affairs.

Unfortunately, there is no consistent practice on this and there have been instances in which the AU lifted the suspension of a member state after the establishment of a transitional government but before elections were held. A recent example has been Mali. During the press briefing after the 5 July PSC meeting, AU Commission Chairperson Dr Nkosazana Dlamini-Zuma said: ‘Nobody will sit behind the (Egyptian) flag – neither the previous government nor the present interim government – until there is an election.’ This means that the establishment of a transitional government might not be enough to reinstate Egypt’s full participation in AU affairs.

In light of the particular circumstances in Egypt, rather than insisting on elections (which are a number of months away), the AU could demand that lifting the suspension would depend on the establishment of an all-inclusive transitional government that also adequately represents Morsi’s support base.

Another aspect of the AU’s rule on unconstitutional changes of government is its prohibition on people who perpetrated the unconstitutional change of government from participating in the subsequent elections. With respect to the situation in Egypt, a major question is whether personalities such as Mohamed ElBaradei would be considered as playing a critical part in ousting Morsi and should not, in accordance with AU rules, participate in the election to be held at the end of the transition being negotiated at the moment.

While the foregoing shows that the decision taken by the AU represents a rare show of its commitment to stand firmly by this norm even with respect to one of the ‘big five’ countries that make the most contributions to AU finances (Algeria, Egypt, Libya, Nigeria and South Africa), there are a number of issues that the AU needs to clarify with respect to its norm on unconstitutional changes of government particularly in cases involving popular uprisings.